Getting it Exactly Wrong

Thursday

It used to be that the scariest statement used to be “I’m with the government and I’m here to help.”

Today, the scariest statement is “Attorney General Holder will soon make the decision whether to seek the death penalty fr Dzohkhar Tsarnaev.”

For the all the discussion about the pros and cons of whether the death penalty should be sought, the most paramount and important issue isn’t getting mentioned at all–whether the United States Constitution grants the power to Eric Holder to make that decision. By the way, the answer is that it does not. While the issue of the federal death penalty has always been a bit tricky, the traditional answer to the question is that the federal government has a right to seek the death penalty for crimes which are committed against the federal government itself on federal property. So, by way of example, an attack on a federal building, the theft of nuclear secrets from a federal facility, military justice. Crimes which invoke interstate commerce generally require trial in multiple states generally require trial in one or more states, and the death penalty is a state choice. Until 2001, the notion that the federal government could execute someone for a non-interstate murder by terming it “terrorism” was completely unknown, and it has never been tested by the Supreme Court.

The attack at the Boston Marathon was a Massachusetts murder/assault on the streets of Boston. It was apparently home grown. There is no indication of any broader context or national or international conspiracy. By any definition of the law, this was a state, not federal crime. As such, this trial should be taking place in a state court in Boston, and the decision as to whether to put him to death should be made in Boston, at the District Attorney level, not in Washington, at the desk of Eric Holder. If Massachusetts elects not to offer a death penalty, that is a community choice. But to federalize a state crime because it offers a death penalty option made in Washington is to violate both the 9th and 10th Amendment to the Constitution, and is a gross affront to the sovereignty of this state.

This has nothing to do with martyrdom, or morality or the nature of the killer himself. This is about the distribution of power as defined by our Constitution. A criminal here should not have his future determined by political pressures at a far and distant point by someone outside the community. this entire concept was rejected in the Declaration of Independence and in both versions of our federal constitution. there is a division between federal and state power. federal power is limited, and must be. There is no greater federal overreach than for the government itself to reach into our state, on to the streets of our capital city, and declare the power of life and death over one of our state citizens. This madness has to stop.

It used to be that the scariest statement used to be “I’m with the government and I’m here to help.”

Today, the scariest statement is “Attorney General Holder will soon make the decision whether to seek the death penalty fr Dzohkhar Tsarnaev.”

For the all the discussion about the pros and cons of whether the death penalty should be sought, the most paramount and important issue isn’t getting mentioned at all–whether the United States Constitution grants the power to Eric Holder to make that decision. By the way, the answer is that it does not. While the issue of the federal death penalty has always been a bit tricky, the traditional answer to the question is that the federal government has a right to seek the death penalty for crimes which are committed against the federal government itself on federal property. So, by way of example, an attack on a federal building, the theft of nuclear secrets from a federal facility, military justice. Crimes which invoke interstate commerce generally require trial in multiple states generally require trial in one or more states, and the death penalty is a state choice. Until 2001, the notion that the federal government could execute someone for a non-interstate murder by terming it “terrorism” was completely unknown, and it has never been tested by the Supreme Court.

The attack at the Boston Marathon was a Massachusetts murder/assault on the streets of Boston. It was apparently home grown. There is no indication of any broader context or national or international conspiracy. By any definition of the law, this was a state, not federal crime. As such, this trial should be taking place in a state court in Boston, and the decision as to whether to put him to death should be made in Boston, at the District Attorney level, not in Washington, at the desk of Eric Holder. If Massachusetts elects not to offer a death penalty, that is a community choice. But to federalize a state crime because it offers a death penalty option made in Washington is to violate both the 9th and 10th Amendment to the Constitution, and is a gross affront to the sovereignty of this state.

This has nothing to do with martyrdom, or morality or the nature of the killer himself. This is about the distribution of power as defined by our Constitution. A criminal here should not have his future determined by political pressures at a far and distant point by someone outside the community. this entire concept was rejected in the Declaration of Independence and in both versions of our federal constitution. there is a division between federal and state power. federal power is limited, and must be. There is no greater federal overreach than for the government itself to reach into our state, on to the streets of our capital city, and declare the power of life and death over one of our state citizens. This madness has to stop.

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